Supreme Court permits Redistricting at will of Legislatures. Requires rewrite of Latino District

The U.S. Supreme Court Wednesday upheld most of a Republican-engineered redrawing of congressional boundaries in Texas at the instigation of former House Majority Leader Tom DeLay (R-Texas), but it threw out part of the new map that it said discriminated against Latino voters.
In another of a series of fractured rulings – this one produced six separate opinions – the high court found nothing inherently wrong with drawing new congressional districts in mid-decade. While the 2003 Texas redistricting plan had partisan motives of increasing the Republicans’ congressional majority, the court said, it did not amount to unconstitutional political gerrymandering.

On the issue of whether part of the new map was drawn with the effect of disenfranchising minority voters in south and west Texas in violation of the Voting Rights Act, the court ruled 5-4 that such a violation occurred and ordered that it be remedied.

Justice Anthony M. Kennedy wrote the court’s opinion. Agreeing with him that part of the Texas map violated the Voting Rights Act were justices John Paul Stevens, Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer. Dissenting were the four most conservative members: Chief Justice John G. Roberts, Jr., and justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.
On the issue of whether state legislators can redraw congressional districts at will – not just once a decade after Census figures come out, as Texas Democrats had argued – the court ruled 7-2 that they could.

The case consolidated four appeals challenging the constitutionality of various aspects of the Texas redistricting plan, which helped Republicans win a majority of seats in the 2004 congressional elections in the state and strengthened the party’s hold on the U.S. House of Representatives.

As a result of the 2000 census, Texas, the nation’s second most populous state, was entitled to two additional House seats, bringing its total to 32. The state legislature failed to agree on a new plan in 2001, triggering lawsuits in state and federal court.

A three-judge federal panel ended up drawing what it called politically neutral district boundaries to govern the 2002 congressional elections. Those elections produced a House delegation made up of 17 Democrats and 15 Republicans.

Republicans gained control over both houses of the Texas state legislature in the 2002 elections, a victory that prompted DeLay to revisit the redistricting issue. After a protracted battle with the state’s Democrats, the GOP succeeded in drawing new boundaries in 2003.

In January 2004, a panel of three federal judges rejected a Democratic challenge to the new map. The Democrats had argued that Texas could not “redistrict in mid-decade” after boundaries had already been drawn, that the GOP plan unconstitutionally discriminated on the basis of race, that it was an unconstitutional partisan gerrymander and that it violated the Voting Rights Act. They charged that the new districts broke up minority communities and merged them into largely conservative, white districts.

Going into the November 2004 elections, the Texas congressional delegation was split 16-16 between Republicans and Democrats, one of the Democrats having switched parties earlier in the year.

As a result of the new boundaries, Republicans picked up five House seats in Texas, emerging with 21-11 majority.

Among the big losers was veteran Democratic congressman Martin Frost, whose district was eliminated. Frost and other Texas Democrats claimed that the redistricting disenfranchised as many as 3.6 million black and Hispanic voters in the state.

In his opinion, Kennedy rejected the challenges to the redistricting plan as a whole, saying there were indications that partisan motives were not the entire reason for it.

The Texas legislature “does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew,” Kennedy wrote.

“The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own,” he said. “And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.”

The ruling took issue, however, with the legislature’s decision to redraw congressional District 23 to protect the Republican incumbent, Rep. Henry Bonilla, who was losing support from the jurisdiction’s growing Latino electorate.

“Faced with this loss of voter support, the legislature acted to protect Bonilla’s incumbency by changing the lines – and hence the population mix – of the district,” shifting nearly 100,000 Latino voters into a neighboring district and replacing them with voters from “a largely Anglo, Republican area in central Texas,” Kennedy wrote.

“The changes to District 23 undermined the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive,” said the opinion. “In essence the State took away the Latinos’ opportunity because Latinos were about to exercise it.”

Kennedy added, “The Court has noted that incumbency protection can be a legitimate factor in districting … but experience teaches that incumbency protection can take various forms, not all of them in the interests of the constituents.” The ruling said this apparent “intentional discrimination” cannot be allowed. But it did not make clear how or by whom it should be corrected before this November’s elections.

The consolidated cases appeared to produce a split among the court’s conservatives on the issue of federal courts’ jurisdiction to review gerrymandering. Justices Scalia and Thomas viewed such cases as “non-justiciable,” meaning they should be left to legislatures and kept out of federal courts. But the Supreme Court’s two newest members – Roberts and Alito, both appointed by President Bush – declined to go that far, although they did not completely close the door on such a finding.

They said the issue of justiciability was not raised and that therefore they would not opine on it. Their position left open the prospect that in a future case, they could agree with Scalia and Thomas that political gerrymandering should not be reviewed by the Supreme Court at all.

In an opinion joined by Alito, Roberts wrote that the appellants in the Texas redistricting case did not provide “a reliable standard for identifying unconstitutional political gerrymanders.” He added, “The question whether any such standard exists – that is, whether a challenge to a political gerrymander presents a justiciable case or controversy – has not been argued in these cases. I therefore take no position on that question, which has divided the Court.”

Long before the Texas redistricting case made it to the Supreme Court, six lawyers and two analysts in the Justice Department’s voting section found that it violated the Voting Rights Act by illegally diluting black and Hispanic voting power in two congressional districts, The Washington Post reported last year. But senior Justice Department officials overruled them and approved the plan. A memo written by the lawyers also said the plan eliminated several other districts in which minorities had a substantial, though not necessarily decisive, influence in elections.

DeLay, then the House majority leader, was a primary instigator of the redistricting. In October 2003, he was admonished by the bipartisan House ethics committee for his role in muscling the new boundaries through the Texas legislature. The committee expressed concern that DeLay had pressured the Federal Aviation Administration, the FBI and other federal agencies in 2003 to help locate Democratic legislators who had fled Texas in an effort to head off the redistricting by denying the state’s legislature a quorum.

DeLay was indicted last fall on conspiracy and money laundering charges in connection with corporate campaign contributions that were allegedly directed to GOP candidates for the Texas legislature in 2002 in violation of state law. The funds were intended to help the Republicans win control of the legislature so that it could then redraw the state’s congressional districts with the aim of increasing the party’s majority in the U.S. House.